Posted
by
Zonk
on Saturday February 12, 2005 @03:37PM
from the built-with-public-funds dept.

wiggles writes "The City of Chicago recently completed a $475 million park/civic center known as Millennium Park. One of the central features is a sculpture officially called Cloud Gate and unofficially called "The Bean". The Bean is a giant, 3 story, 110-ton hunk of highly reflective steel. Photographers taking pictures of the sculpture have been charged money by the city. The park district is claiming that pictures of the park violate the designers' and artists' copyrights. Quoth Karen Ryan, the press director for the park's project, "The copyrights for the enhancements in Millennium Park are owned by the artist who created them. As such, anyone reproducing the works, especially for commercial purposes, needs the permission of that artist." In response, Chicagolandbloggers have been posting as many pictures as they can get of The Bean."

This is outrageous. The funding came from two sources: public and private. The article addresses both. First public:

The city's $270 million is mostly coming from bonds backed by revenue from the underground parking garages, said Lisa Schrader, a spokeswoman in the city's budget office.

Paid for by the citizenry of Chicago. Now, there was also the private source:

In all, about $200 million of the funding came from private contributors whose names are sprinkled throughout the park -- Wrigley Square, Bank One Promenade, BP Pedestrian Bridge, McCormick Tribune Plaza, the Lurie Garden.

Boom, they have their recognition and return on their investment.

My point is that these works of art are being errected in a public place, paid for by public funds and through private sponsorship (that has recieved its due return - free advertising in the form of building nomenclature). It is absolutely absurd that the citizens would be charged money to take pictures in their own damn park! Because that's what it is, they all own it through their tax dollars. Therefore, they should be able to take their damn pictures for free. Otherwise, can the city of Chicago really be providing the best government to its citizens?

As far as I know, anything viewable from a public area may be photographed. If the artists want to enforce copyright, they should place their sculptures in an enclosed building.

Bert Krages, a photographer and attorney, publishes an online guide called The Photographer's Right [krages.com] that pretty well agrees with you. I'm sure it's only a matter of time before this matter ends up in court.

(c) Exceptions.
(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of "work of visual art" in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).

There. Got it? IF YOU TAKE A PICTURE OF A WORK OF VISUAL ART, YOU ARE NOT COMMITTING COPYRIGHT INFRINGEMENT!

I'm sorry, this just pisses me off. The creator can not do this. The fucking balls and arrogance of some people, goddamn!

For example, in France, a professional photographer must pay 5,000 euros per day for a license to use a tripod when taking photographs of public buildings like the Palace of Versailles. If you can't prove that you are a professional photographer, you may not buy a tripod permit at any price.

Looks like you're the stupid one, after all.
But of course, lefty soreheads who belittle the USA are usually ignorant malcontents who don't realize how good they have it.

No, that's 17 USC 106A. The appropriate section of the law is 106(1), which states that the copyright holder has the exclusive right to reproduce the work. 106 applies to all copyrighted works. 106A merely adds some additional rights with regards to works of visual art; it doesn't supplant 106.

So yeah, if you take a photo of a copyrighted work, it will typically be infringing. There are some exceptions e.g. 107, 120, but no blanket exceptions that seem useful here.

Way to quote only the part of the article that supports your argument. Here's the rest of the blurb:

Brian McCartney sez, "Just a note, the piece was not publicly paid for, it was a gift from SBC Communcations. Not that it matters, it's still totally bogus." Too right -- the public are still paying for this, not just in upkeep, but in the tax-break to SBC, in the maintenance of the object, in the policing to stop photogs, and most of all in the cost to the public nature of its space that comes from having an unphotographable object splatted right in the middle of an otherwise very nice park.

And, as another poster pointed out, regardless of who paid for it and how, it's now owned by the public.

Not only that, but you apparently didn't bother to read the article linked to by the source you quoted.

From the article:The sculpture is made possible by a gift from the SBC Corporation.

The article makes no mention of SBC paying for the actual sculpture. It makes reference to a "gift" which could have been the land (since it's called SBC Plaza) or a monetary donation which the city then used to pay for the sculpture.

The light display on the Eiffel Tower at night is copyrighted by SNTE, the company that maintains it. They require fees for the right to publish photos taken at night. You can find more info in the story here [fastcompany.com] and at the official site's FAQ. [tour-eiffel.fr]

Commercial photographs of the Eiffel Tower during the day are perfectly legitimate, but commercial photographs of the Eiffel Tower when illuminated are infringing upon the copyrighted lighting design. How fucked up is that?

"I'm sorry, but a photograph of a sculpture is not a reproduction of said sculpture. " - it's a transformative reproduction. There's enough creativity involved (choosing the angle etc) that if it were in the public domain, a picture if it would qualify for copyright; on the other hand, it's close enough to the original that it could be considered either a copy or a derivative work. These are the same issues that were litigated in the Bridegeman art Library v Corel case.

The usual story explaining this is that occasionally very pale elephants are born, and in SE Asia, these have been traditionally considered a sacred beast. If you offended a king or prince or other powerful person, one way of getting back was to give you a "gift" of a white elephant. This obligated you to care for the elephant for the rest of your/its life. This could be somewhat of a financial burden, of course.

Sounds like the people of Chicago have themselves such a gift. Especially if you can be sued and fined (or imprisoned?) for merely taking a picture of the gift at its very public location.

This is probably also a good exhibit in any discussion of changing the copyright laws.

As a Chicago resident I would be *real* hesistent to use the Reader as the one and only source of information. Not that it matters since every "article" (ahem.. blog) took this out of proportion anyway.

Step 2, knee jerk reaction. I am really hoping the part about bribing the police/security was something the author added for editorial flare. Now let's look at the actual permit, shall we?Permit [chicagoparkdistrict.com]

The first fact the author got wrong is that this permit applies outside the Chicago Park district. It doesn't, so bring the knee back a little bit.

I also don't see the BS about "journalism" anywhere on here. In fact, this permit only seems to apply to anyone who wants to *sell* the photographs. While I don't agree with it, the fact that Chicago only wants to prohibit people from selling pictures of their parks makes a little more sense to me.

I am a little upset here for some of the bad journalism. Not only did the Reader get the facts wrong, but the blogs continued to propagate these incorrect facts. Let me reiterate: the fee of $325 is only for people who intend to take commercial photographs of Chicago Parks, and it mentions nothing about a.) non-park places in Chicago or b.) journalists using the pictures for content.

The "article" is wrong, the blogs are wrong and the quotes seem plain out of context given the facts.

Sorry, but you're wrong. The creator of the work holds the copyright. In copyright law "copy" refers to the original work as well as physical copies of it.

17 USC 101, "The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed."

17 USC 106, "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:(1) to reproduce the copyrighted work in copies or phonorecords;(2) to prepare derivative works based upon the copyrighted work;(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."

The Happy Birthday song isn't owned by Disney, it's owned by Warner Music Group. Snopes has an article on it [snopes.com]. (Note that at the time the article was written there was still an AOLTW. WMG is no longer part of even TimeWarner.)

If you've ever been in the middle of one of those embarrassing restaurant wait-staff birthday serenedes, and wondered why they were singing a birthday song you'd never heard before, this is way.

Actually, it seems you are right, and that I am wrong. Your paragraphs don't address the transfer of copyright with the master recording (or any physical instance), but this paragraph does:

Section 202 of the Copyright Act:"Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from any ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object."

"(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:(1) literary works;(2) musical works, including any accompanying words;(3) dramatic works, including any accompanying music;(4) pantomimes and choreographic works;(5) pictorial, graphic, and sculptural works;(6) motion pictures and other audiovisual works;(7) sound recordings; and(8) architectural works.(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Works of art (including the originals) can be bought with and without publication rights. I've bought examples of each. Owning the master copy of a record doesn't give you the right to make copies. It's having the contract that transfers (or licenses) the copyright that makes it worthwhile owning the master (other than as a collectible).

If you're willing to wait the 150 years (+-50) that it takes for a copyright to expire these days, then you can make all of the copies that you want.

That having been said, there's the concept of 'reasonable use' in copyright law, and taking pictures of something that's been donated to a public park should probably fit in that definition. If I lived in Chicago, I'd probably call their bluff and ask them to take me to court.
If I was in a really snarky mood, and had the time and/or money, I might even file for a declaratory judgment.

Yes, another poster pointed out [slashdot.org] the requirement for explicit transfer of copyright, and I posted [slashdot.org] the exact legal basis of their correction. Slashdot's limited threading GUI, and our limited Slashdotter attention span, will probably be offering my hat for eating for a while this afternoon:).

All those other reasons I cited still seem compelling. The public has a right to look, and record what we see, in public places. That right surely trumps the copyrights of a published work. Though I'd bet there are lots of people who would interpret that conflict as "property rights trump the rights of the masses". I believe the French have been embroiled in this controversy for over a decade, under the heading "droit de regard".

Doesn't matter. If I want to make postcards of this thing and sell them in gift shops then it matters. The police are stopping every photographer from photographing this thing. Courts have ruled that things like advertisements and other works on public display are not covered by copyright if for instance someone is just taking a picture for their family album, if someone is taking a picture for a news article, or if the work is not the primary focus of a picture or pictorial. When someone takes a picture of a city skyline, they do not have to go paying thousands of architects for the right to do so.

The city didn't buy the copyright to the structure, just the structure itself. Art is cheaper that way. Now I think that the city shouldn't have agreed to buy the art without the copyright, as it is public art, but they did.

Not if he or she was hired to do the work. It's called "work for hire". If SBC said "here's $50k, design and build us a monument", the artist is shit out of luck; SBC owns the work UNLESS they signed a contract saying the artist keeps copyright.

Furthermore, it's not the city's job to enforce copyright, unless the city owns the copyright. It's a civil (not criminal) matter- and entirely up to the copyright holder to enforce.

Read up on photo.net on copyright, and learn a few things about practical matters of copyright, not what a section or two of US code says.

Although property does not enjoy a right to privacy or publicity that there are other bodies of the law that might prohibit or restrict the unauthorized use of a photograph containing property. These bodies of law may include among others contract, trademark, unfair competition, copyright and trespass law.

The guiding principle, that of course is muddled with exceptions, is that as long as a photograph of private property is taken while the photographer is on public property or on property that is open to the public then it is permissible to publish that photograph without permission from the owner of the property.

However, there are exceptions where it may be necessary or advisable to obtain permission from the owner of the property. These exceptions may include among others, a photograph of (i) artwork displayed in a museum, gallery or other location, (ii) a well-recognized product, such as a Harley-Davidson motorcycle, where the manufacturer has been litigious with respect to commercial uses of photographs containing their product, (iii) a building where the building design is protected by a federal trademark registration - recently there was litigation involving a photograph of the Rock and Rock Hall of Fame, (iv) a "famous" pet such as Lassie, (v) interiors of private buildings and (vi) personal property, such as their clothing or jewelry, that could identify an individual.

In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

IANAL, however, it looks like if a work of art is displayed in a public place, it is OK to make pictures of it.